Terms and Conditions

1. General

1.1 The Buyer is the party named in the attached credit application form. These terms govern the contract between the parties. By placing or confirming an order with the Company the Buyer is accepting these terms and conditions. Any terms endorsed on any other documents pertaining to any order and, in particular, on any order form or request form produced or used by the Buyer are expressly negated and do not form part of the contract between the parties, unless the Company has specifically agreed in writing those terms. The Company may amend these terms at any time and any further contracts with the Buyer will be on the basis of such amended terms.

2. Orders irrevocable

2.1 The Buyer acknowledges that the Company will incur obligations and costs once the Buyer places or confirms an order. Therefore, the Buyer may not cancel or vary an order without the written consent of the Company once it has been placed.

3. Price and payment

3.1 The Company may vary the contract price to take account of any increase in costs of materials or services between the date of the Buyer’s order and the date of delivery. The Buyer accepts and acknowledges that the binding contract price will be the price set out in the Company’s invoice. Prices do not include delivery costs. Sales tax or goods and services tax will be charged, in addition to any stated price.

3.2 Payment in full must be made immediately the Company has supplied the goods. Where the Company agrees to extend credit to the Buyer, the Buyer agrees to pay the Company the amount invoiced by the 20th of the month following the date of the invoice. The Buyer may not set off any payments owing to the Company against any payments owed by the Company to the Buyer, or any claim which the Buyer may have against the Company.

3.3 Without prejudice to any other rights of action the Company may have for late payment by the Buyer, the Company may charge interest on a daily basis to the Buyer, at a rate equal to 2% per month (24% per annum) or such other rate as notified to the Buyer by the Company, until the overdue amounts are paid. Interest will accrue after, as well as before, any judgment which the Company may obtain against the Buyer and the Buyer will also be liable to pay all of the Company’s expenses (including legal costs) incurred in attempting to obtain, or obtaining, a remedy for the Buyer’s failure to pay for the goods in accordance with these Terms of Trade.

3.4 Where overdue debts have been passed on to a collection company, that agency or its agents have the right to recover collection costs directly from the Buyer.

3.5 The Buyer consents to any disputes arising between the Company and the Buyer being heard in the jurisdiction of the Papakura District Court or Auckland High Court (depending on the quantum of the claim).

3.6 Without prejudice to any other remedies which the Company might have, failure by the Buyer to pay any debt due will entitle the Company to cease supply of goods to the Buyer and cancel any contracts with the Buyer. Upon such cancellation, and without prejudice to any other remedies which the Company might have, all credit in favour of the Buyer will cease and all payments outstanding will become immediately due and payable to the Company.

3.7 The Company may require the Buyer to procure such guarantees, indemnities and securities as the Company considers necessary, to secure to the Company payment of all sums due by the Buyer and without prejudice to any other right as remedy, may refuse to supply any goods or services to the Buyer until such guarantees, indemnities and securities are given.

4. Authority order

4.1 The Buyer warrants that its employees and representatives who order goods from the Company on behalf of the Buyer are authorised to place such orders and to pledge the credit of the Buyer to the Company

5. Delivery and risk

5.1 Any time limit set by the Buyer for the delivery of the goods by the Company will only be binding if specifically accepted in writing by the Company. However, any delay due to circumstances not reasonably within the control of the Company will not entitle the Buyer to cancel the contract or to refuse to accept delivery or refuse to make payment.

5.2 The means of delivery of goods is at the Company’s discretion. The Company is permitted to deliver any goods ordered by part deliveries, which are deemed to be separate order under the same provisions of the main order, and the Company is entitled to invoice each delivery and be paid in accordance with these terms and conditions.

5.3 The Company is not obliged to deliver goods until all sums due to the Company by the Buyer are paid in full. If the Company elects not to deliver the goods until all sums due are paid in full, the delivery date for all outstanding orders will be the later of the delivery date specified in any outstanding orders, and the date being seven days from the date of payment by the Buyer of sums due to the Company.

5.4 Irrespective that the title to goods may not have passed, the risk in goods supplied to the Buyer by the Company passes to the Buyer upon delivery of the goods by the Company to a common carrier for transit to the Buyer or, in the event of delivery by the Company, risk will pass on actual delivery to the Buyer. In the event that the Buyer collects the goods from the Company, the risk passes immediately to the Buyer or its representative takes possession of the goods.

6. Claims and liabilities

6.1 Any claim by the Buyer of any defect in the goods or any non-conformity to an order for goods must be made in writing to the Company within three days of the delivery, failing which the Buyer is deemed to have accepted the condition of the goods and the conformity of the goods to the order.

6.2 There is no obligation on the Company to accept any return of goods supplied. Rather, the Company will in good faith consider any claim properly made pursuant to 6.1 above.

6.3 In no circumstances will the Company be liable to the Buyer or any other person, whether in contract, tort or otherwise, for any loss or damage or injury arising, directly or indirectly, or from goods supplied by the Company to the Buyer or from the failure of the Company to supply any goods to the Buyer or any other person. The Company will not be liable to the Buyer or any other person for any damage to the Buyer’s good’s irrespective of whether such damage is caused by the negligence of the Company. In any case, whether the Company is found to be liable to the Buyer or any other person for any reason whatsoever, the extent of the Company’s liability will not exceed the contract price. Any warranties or guarantees expressed or implied by law or statute are excluded to the extent that such law or statute permits exclusion.

7. Default by Buyer

7.1 If the Buyer fails to comply with any of these Terms and Conditions, the Company is entitled to cancel any orders already made and any credit accounts conducted by the Buyer with the Company and to recover from the Buyer any losses, damages, costs, interest, fees, charges (including handling charges payable by the Company) and expenses incurred by the Company as a result of the Buyer’s default and the subsequent cancellation of such order by the Company.

8. Retention of title

8.1 It is expressly agreed that ownership is reserved and legal and equitable title to and property in all goods supplied or agreed to be supplied by the Company is and remains vested in the Company until payment in full has been received in respect of such goods and all other moneys owing by the Buyer to the Company.

8.2 The Buyer agrees (for the purposes of s36(b) Personal Property Securities Act) to this Retention of Title clause creating a Purchase Money Security Interest in all goods that the Company supplies to the Buyer while those goods are held as inventory by the Buyer, until payment is received for all money owing by the Buyer to the Company. The Buyer further hereby waives the right to receive a verification statement for the purpose of s148 of the Personal Property Securities Act.

8.3 Notwithstanding that title to and property in the goods remains with the Company and irrespective of any period of credit granted by the Company to the Buyer, the Buyer may sell such goods in which case, the following provisions shall apply to each such sale. As between the Buyer and the Company, the Buyer is the Company’s agent or bailee. As between the Buyer and the Purchaser of each item of goods, the Buyer sells as principal and not as agent of the Company. The proceeds of sale of each item of goods must be held by the Buyer in a separate bank account in trust for the Company to the extent of all moneys owing by the Buyer to the Company and the Buyer is under a fiduciary duty to account to the Company for such proceeds the Buyer must immediately account to the Company for all proceeds of sale upon the sale of each item of goods irrespective of any terms of credit between the Buyer and the Company.

8.4 Until an item of goods is sold by the Buyer the Buyer will clearly designate the item of goods as the property of the Company, store the item of goods in such a way that it is clearly identified as the property of the company and keep full and complete records, firstly, of the physical location of each item of goods from time to time and secondly, the ownership of each item of goods by the Company.

8.5 The reservation of title and the ownership is effective whether or not the goods have been altered from their supplied form or mixed with other goods. Where such goods are mixed with other goods and are severable but not identifiable or incorporated with other goods into another product so that they are not severable (whether such mixture or incorporation or loss of identity is as a result of the Buyer’s defaults or otherwise) or in any situation where a similar dealing with the goods has resulted in their removal being impossible or impracticable, the Company is a co-owner of the mixed goods or products in proportion to the contribution made by the goods to such mixed goods or products.

8.6 The Company is irrevocably entitled at any time from time to time before sale of any item of goods by the Buyer to inspect or to recover and retake possession of such item of goods and otherwise exercise in relation to the goods any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. The Company and its agents are now irrevocably authorised to enter any premises of the Buyer or any third party. The Buyer agrees to indemnify the Company and its agents for any liability arising from any act of trespass committed by such entry. The Company and its agents agree to take all reasonable care in removing the goods fitted or installed in such premises but are not liable for any damage or injury to such premises caused by the removal of the goods.

9. Force majeure

9.1 The Company is not under any liability whatsoever in respect to any failure to deliver or any delay in delivery due to any cause beyond the Company’s control of whatever nature. In no circumstances whatsoever shall the Company be liable for consequential loss whether suffered by the Purchaser, and/or any third party.

10. Consumer legislation

10.1 Where the provisions of the Consumer Guarantees Act 1993 apply, these terms will be read subject to the application of that Act and in the case of any conflict, the provisions of that Act will apply. Where the Buyer is a business (as “business” is defined by the Consumer Guarantees Act 1993) it agrees that it is acquiring all goods from the Company for the purpose of a business and that the Consumer Guarantees Act 1993 does not apply.

11. No waiver

11.1 No failure or delay by the Company to exercise any power, remedy or right to these terms and conditions of sale will prejudice, limit or affect, or operate as a waiver of that power, remedy or right, or be denied to waive any default or breach of any obligation, liability or agreement of any other party.

11.2 No waiver of any breach of any provision in these terms and conditions of sale will be effective unless such waiver is in writing and signed by the party against whom such waiver is claimed. No waiver of any breach shall be deemed to be a waiver of any other or subsequent breach.

12. Notices/Details of Buyer

12.1 The Buyer will immediately advise the Company in writing if the Buyer changes address or there is any material change to the details provided in the Credit Application.

2.2 The Company is entitled to serve any notices on the Buyer at the address provided by the Buyer in the Credit Application (or at any amended address as set out above).

13. Guarantee and indemnity

13.1 In consideration of the Company approving for credit the Buyer, I/we (jointly and severally if more than one of us) unconditionally guarantee payment of all moneys due and owing to you under the terms of this credit application and our terms of trade. I/we acknowledge receipt of a copy of this application and your terms of trade.

13.2 I/we agree that as between you and I/us, we/each of us has the liability of a principal debtor in respect of all moneys owing under the above account.

13.3 I/we agree that our guarantee is unaffected by unenforceability of payment of any moneys owing to you by the Buyer irrespective of whether such unenforceability is caused by the liquidation or bankruptcy of the Buyer, by the giving of time of any indulgence by you, incapacity on the part of the Buyer, or insufficiency of authority on our part, procedural defect or otherwise. In addition to the above guarantee, I/we (jointly and severally if more than one of us) agree to keep you fully protected and indemnified against loss as a result of your approving this application and extending credit to the Buyer.

13.4 I/we agree that demand may be made on any of us by the Company without demand being made on the Buyer or on the rest of us (if more than one)